A Leavenworth County judge has set aside another judge's ruling that would have permitted additional DNA testing in a case that resulted in a 2007 rape conviction.

A Leavenworth County judge has set aside another judge's ruling that would have permitted additional DNA testing in a case that resulted in a 2007 rape conviction.

When setting aside the other judge's ruling, District Judge Michael Gibbens said he wants to hear testimony regarding the additional testing that is being proposed by Kevin D. Skaggs.

Skaggs, 40, was convicted in 2007 of rape involving sex with a child younger than 14, aggravated criminal sodomy, sexual exploitation of a child and promoting obscenity to minors.

Skaggs, who maintains he is innocent, was sentenced to 310 months, or 25 years and 10 months, in prison. He continues to serve his sentence with the Kansas Department of Corrections.

In June, District Judge Gunnar Sundby granted a request by Skaggs for additional testing of DNA evidence from the rape case.

Sundby has since retired as a district court judge. Gibbens has taken over Sundby's former docket.

County Attorney Todd Thompson filed a motion asking Gibbens to reconsider the ruling made by Sundby.

Gibbens heard arguments on the motion Thursday in Leavenworth County District Court. The judge also heard arguments concerning another motion related to Skaggs' case.

Thompson argued that the judge does not have to grant Skaggs' request for additional DNA testing because the tests would be cumulative. Thompson said that during the trial, jurors were informed that no DNA match to Skaggs was found.

But Skaggs' attorney, Kevin Reardon, said a prosecutor made an argument during the trial that suggested biological evidence in the case came from Skaggs.

Thompson argued an argument made by a prosecutor during the trial is not considered evidence.

Reardon said there are new testing techniques that were not available at the time of the trial.

An affidavit from an expert regarding the potential new testing of the evidence previously had been submitted in the case.

Gibbens said he would like to have more information about the scientific testing than what is contained in the affidavit.

"I think I need to hear expert testimony as far as what testing is available right now," the judge said.

Gibbens plans to hear this testimony during a future hearing.

"So at this time, I have set aside Judge Sundby's opinion," he said.

Gibbens also heard arguments on a motion to reconsider another ruling by Sundby.

Sundby had denied a motion filed by Skaggs to vacate, set aside or correct his sentence. And Gibbens was asked by Skaggs to reconsider this ruling.

Reardon said Skaggs had discovered new evidence of discrepancies between two examinations of the victim in the case. He said evidence presented to jurors during the trial was incorrect.

Thompson said this matter already has been "argued, litigated and decided."

"No new information has been provided," he said.

Gibbens said he is taking this motion under advisement to determine if an evidentiary hearing is needed.

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